Incompatibilists, Critics, and Living Trees: the compatibility of international law and constitutional democracy

Abstract

In this thesis, I address two issues. First, I reject the supposed conflict between international law and constitutional democracy. And second, I explore the role of international law in domestic constitutional law, particularly in Canada. In order to address both of these issues, I draw an analogy between the “Incompatibilist” critiques of international law and constitutional democracy, and the arguments against judicial review made by “the Critics” that Waluchow responds to in his book, A Common Law Theory of Judicial Review: the Living Tree. I argue that both the Incompatibilists and the Critics describe in-principle problems, structural problems, and decision-making problems in their respective critiques. The Incompatibilists are describing these problems in the context of the interaction between international law and constitutional democracies, while the Critics are focusing on constitutional judicial review, but I argue that the theory Waluchow presents as an answer to the Critics can also be directly applied to the Incompatibilists. Waluchow’s theory of common law judicial review and the community’s constitutional morality gives support and democratic legitimacy to judicial review in a domestic constitutional context. By applying his reasoning to cases involving international norms, I address problems in domestic courts’ application of international law and the democratic challenges they face.